The defendant on the trial of this cause, raised several objections to the plaintiff’s recovery. One was, that there was no contract between the parties, on which this action could be sustained. His Honor told the jury, that there was some evidence of the contract. We must say, that we are unable to ' see any legal evidence of a contract on the part of the defendant, that he would pay the- plaintiff his demand, if the plaintiff would not object to the Sheriff’s sale. The plaintiff declared, that he- would object to the sale by the sheriff, if the purchaser under such sale, whoever he might be, would not agree to pay him liis debt; which *326debt, he said, was secured to him by a prior deed in trust on sa^- P10Perty- Whereupon the plaintiff and the defendant got together, as the witness said, and had a conversa-t-Qi^ was not heard by the witness. The assent of the defendant to the proposition of the plaintiff, to make a legal contract, ought to have been established, either by words spoken or act done by him, which raised a reasonable inference or presumption of assent: The fact, that the defendant and plaintiff got together and had a conversation, after the declaration made by the plaintiff as above stated, that the purchaser under the sheriff should pay his debt, was not, as we think, an act done by the defendant, which could in law raise any presumption that he assented to the plaintiff’s proposition. There must be a new trial.

Per Cukiakt, New trial awarded.